By any color, it is discrimination

OMG - I am in agreement with Oregonian columnist Elizabeth Hovde. Her position on the New Haven firefighters discrimination case is correct in law and equity.

"It's also obviously wrong to tell people that they are being passed over for a promotion after having employees study for and take a test to earn that promotion." [Oregonian: "Supreme Court ruling shouldn't fan the flames: it restores some common sense'"]

New Haven, Conn. discarded the results of firefighter promotion exams because the white firefighters outperformed black firefighters. Their rationale - fear of being sued.

Although, It might be described as a reverse discrimination case, pundits have avoided that categorization. I am not sure why. Certain terms just seem to disappear from use. Political correctness at work?

The case gained more press because the US Supreme Court overruled the Appellate Court that has Judge Sotomayor as one of 12 active judges.

She is President Obama's choice for the US Supreme Court. Her role in the case was at best - minimal.

Procedurally the case originated at the federal trial court (District Court) level with each side making motions for summary judgment. This is a request for decision on legal issues before proceeding to trial.

It is not the typical trial case where lawyers introduce evidence and question witnesses. The court is asked to make a decision of law based upon the extant record.

The record was developed through the pleadings, discovery and meetings of the New Haven Civil Service Board (CSB).

The legal issue in this case is essentially the statutory construction of two conflicting parts of Title VII of Civil Rights Act - disparate treatment (intentional discrimination) and disparate impact (no intention but an adverse effect).

"New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. "

"Confronted with arguments both for and against certifying the test results--and threats of a lawsuit either way--the City threw out the results based on the statistical racial disparity. "

"Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City's refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. "

"The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. "

"The District Court granted summary judgment for the defendants, and the Second Circuit affirmed. "

US Supreme Court, the majority opinion by Justice Kennedy:

"We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute."

"The respondents, we further determine, cannot meet that threshold standard. As a result, the City's action in discarding the tests was a violation of Title VII." [Bold emphasis added].

[The US Supreme Court decision rendered by Justice Kennedy and concurring and dissenting opinions can be found at the Cornell Supreme Court collection.

If one is interested in reading legal opinions - I would recommend the reading the US Supreme Court decision by Justice Kennedy because it regurgitates the lower court decisions.

And to get a better feel of the 'behind the scenes,' I recommend reading the concurring opinion by Justice Alito and the dissenting opinion by Justice Ginsberg.]

The District Court determined that the white firefighters were not subject to intentional discrimination by the city.

It "concluded that respondents' actions were not "based on race" because "all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted."

"It also ruled that respondents' "motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent"

The City's assertion that it acted in good faith fear of a suit under the disparate impact statute was upheld. Summary Judgment for the City.

The Appellate Court affirmed the District Court and adopted the lower court's reasoning as its own.

But the Supreme Court's Justice Kennedy: "Whatever the City's ultimate aim-however well intentioned or benevolent it might have seemed-the City made its employment decision because of race."

But there is much more to this story that involves city intrigue and pressure by local minister. The City had not the fear of any legal liability - it had the fear of offending the local black community. [See Justice Alito's concurring opinion for the juicy bits.]

It was the CSB that had the responsibility to certify the results of the exams. Once the results were known, the CSB had their work cut out. It was before the CSB that much of the "rancorous debate" took place.

The rancor was well provided by a Lt. Gary Tinney who apparently had racial issues of his own, e.g., he called those who agreed with certifying the results "Klansmen." [concurring opinion].

Lt. Tinney was a fire captain that failed the test and he apparently had strong connections in the mayor's office.

A local minister "threatened the CSB with political recriminations if they voted to certify the test results." Quotas seemed to be the goal. [See concurring opinion].

The mayor, in fact his entire office, dealt with the certification in a political manner. Working behind the scenes the mayor was putting pressure on the CSB not to certify the results.

And, had the CSB certified the test results - the mayor was positioned to use his executive power to discard them.

In the end the CSB voted 2 - 2, one member recused. CSB rules meant the tie was a vote against the certification.

And what about the exams? There can be no doubt that these were above reproach. They were racially neutral, job related and objectively based.

The City had hired a firm Industrial/Organizational Solutions (IOS) to develop and administer the exams. Partial quotes [reformatted] from a fairly extensive review by the Court:

"In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. [. . . ]. "

"Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department."

"At every stage of the job analyses, IOS, by deliberate choice, over sampled minority firefighters to ensure that the results--which IOS would use to develop the examinations--would not unintentionally favor white candidates."

"With the job-analysis information in hand, IOS developed the written examinations to measure the candidates' job-related knowledge. For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions.

"IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. [. . .]"

"After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken."

And what about firefighter Ricci, one of the plaintiffs/petitioners? From his testimony at the CSB:

""Ricci stated that he had "several learning disabilities," including dyslexia; that he had spent more than $1,000 to purchase the materials and pay his neighbor to read them on tape so he could "give it [his] best shot"; and that he had studied "8 to 13 hours a day to prepare" for the test. [. . .]. "I don't even know if I made it,"Ricci told the CSB, "[b]ut the people who passed should be promoted. When your life's on the line, second best may not be good enough." [. . .]."" [Court's opinion].

But the City had taken the easy way out - bowing to pressure. They developed a public rationale - fear that the city would be sued. [See Justice Alito's and Justice Ginsberg opinions for more background. It is a good thing dueling is outlawed.]

It was clear that the city would have been sued no matter what it did. The City failed to certify the results. White firefighters sued because they loss promotion opportunities merely because of race. [Intentional discrimination]

If the City had certified the results, the minority firefighters would have sued based upon the disparate impact, i.e., the test results viewed in terms of race essentially excluded blacks. [No intent but the adverse impact].

To resolve the potential conflict given the fact situation, the Court fashioned a new standard.

The firefighters' position was that an employer must know that its action will violate the disparate impact statute. The City's position was that they only needed a good faith belief that its actions would violate the disparate impact statute.

The Court: "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."

The Court took the middle ground and established a "strong basis in evidence" standard. The Court 'borrowed' a standard used in the context of remedial remedies for past racial discrimination under the Equal Protection Clause of the Fourteenth Amendment.

A "strong basis in evidence" is standard is higher than a "good cause" or "good faith" standard thought sufficient by the District Court and apparently Justice Ginsberg.

The Court saw this standard as insuring that the purpose of Title VII is fulfilled, i.e., "to promote hiring on the basis of job qualifications, rather than on the basis of race or color."

Applying this standard the Court overruled the decisions of the District & Appellate Courts.

"We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute."

"The respondents, we further determine, cannot meet that threshold standard. As a result, the City's action in discarding the tests was a violation of Title VII."

The City is not precluded from going forward with a trial on the merits in accordance with the new applicable standard.

"Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate treatment and disparate-impact provisions."

"If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability."

But there was food for City thought. "[I]ts hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results."